2Legal Services |
| » | COMMUNITY LEGAL SERVICE | |
| » | Advisers who are not qualified lawyers | |
| » | SPECIALIST HELP FROM LAWYERS | |
| » | Lawyers' monopolies | |
| » | Standards of service | |
| » | How lawyers are paid | |
| » | Changes to the law | |
| » | References |
| 2.1 | Chapter 1 explained that the Government's aim is to ensure that people have access to appropriate information or services, to enable them to avoid or resolve legal problems in a cost-effective way. To achieve this, we need to tackle the following problems:
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| 2.2 | This chapter should be viewed together with chapters 3 and 4, as a 'joined-up' approach to modernising the provision of civil courts and legal services. We will work closely with the judges, providers of legal services and others to promote innovation in the interests of the consumer and the tax-payer. But we also intend to use the Government's position as a major purchaser of legal services to achieve our aims of wider access to justice and better value for money. |
| 2.3 | This chapter begins by outlining our plans for a Community Legal Service (CLS). This will have two complementary roles. It will improve access to information, advice and assistance services, by working with other funders to identify local needs and co-ordinate funding. It will also manage a new CLS fund that will replace civil legal aid (see paragraph 2.4 below and Chapter 3). The second part of this chapter describes our proposals for making the services of lawyers more affordable, for both private clients and the taxpayer, principally by eliminating unnecessary restrictive practices that reduce choice and competition. |
| 2.4 | The next chapter concentrates on those legal services which the taxpayer buys on behalf of people who cannot afford their own. It explains how, by establishing the CLS fund, we will bring the demand-led legal aid budget under control, so that consumers, not lawyers, benefit from the system. |
| 2.5 | Chapter 4 describes our plans for streamlining the procedures of the civil courts. |
 | COMMUNITY LEGAL SERVICE |
| 2.6 | As promised in our Manifesto, the Government intends to establish a Community Legal Service. We will do this both by tackling the current lack of planning and co-ordination in the advice sector, and by fundamentally reforming civil legal aid. Our longer-term aim is to ensure that every community has access to a comprehensive network of legal service providers of consistently good quality, so that people withactual or potential legal problems are able to find the information and help they need. |
| 2.7 | At present, the fragmented and unplanned nature of the advice sector prevents the various funders and providers of services from working together to achieve the maximum value and effect overall. In most parts of England and Wales, people can seek information, advice and assistance from several different sources. For example, there are 700 main Citizens Advice Bureaux with a further 1,759 outlets, over 800 independent advice centres, many of them specialising in particular fields, and 53 law centres. These bodies receive their funding - over £150 million a year in total - from many different sources, mainly local authorities, but also charities, including the National Lottery Charities Board, central Government, the Legal Aid Board, and business. |
| 2.8 | These agencies have a vital role to play, and the taxpayer will continue to fund them, both locally and centrally. But the advice sector has grown up randomly, driven largely by the availability of funding. Most provision is not based on a rational assessment of need, and different types of service are spread unevenly across the country. Despite the large number of agencies in total, a person may well be unable to find the right kind of help for his or her particular problem, within a reasonable distance of home. |
| 2.9 | The Government believes that the solution lies in two key developments:
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| 2.10 | We also believe it is important to co-ordinate the provision of information and basic advice with that of more specialised services, like detailed advice, mediation, or representation in litigation by a lawyer. In addition to the public funding which goes to support the advice sector (paragraph 2.7), some £800 million is spent on advice, assistance and representation by lawyers, through civil legal aid. In future, these two sorts of spending will be considered as a whole. As we achieve proper control over the legal aid budget, it will be possible to refocus spending to develop the Community Legal Service more fully. |
| 2.11 | The Government intends to set up a new body, the Legal Services Commission (LSC), to take the lead in establishing the Community Legal Service. The LSC will be funded by central Government, but managed independently by a board of directors. Its responsibilities will be to:
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| 2.12 | A co-ordinated system for planning and funding legal services must take account of the views of local people. It will only be successful if local authorities, the bodies mainly responsible for meeting the needs of local communities, are closely involved. So the LSC will find ways to work in partnership with local communities, local government and other funders. These partnerships will build on the links and structures already established by the Legal Aid Board through its Regional Legal Services Committees; these will continue to have the role of advising the LSC on how best to deploy the resources of the Community Legal Service fund to meet priorities across the region as a whole (see paragraph 3.15). |
| 2.13 | The Government intends to change the law in order to set up the LSC. Meanwhile, we will be preparing for the start of the Community Legal Service in three ways, by:
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| 2.14 | To carry out their task of assessing local needs and priorities, and matching funding to them, the partnerships between the LSC and funders will need a 'toolkit' of planning mechanisms and techniques. To develop these, and to identify best practice models for the partnerships, the Government will set up a group of 'pioneer partnerships' in four or five local authority areas. These will bring together the local authority, the Legal Aid Board, other local and national funders and, where appropriate, local providers. Conclusions and decisions from these pioneer projects will be drawn together at the end of 1999. |
| 2.15 | Just as funders need to co-operate, we believe that different providers need to work together, to ensure that people are referred to the most appropriate source of help, and to make the most effective use of the particular expertise, training and experience of all the providers in an area. The Lord Chancellor's Department has commissioned research, to find out what encourages different providers to refer appropriate cases to one another, and what prevents them from doing so4. The research will be completed by the end of 1998. |
| 2.16 | In Spring 1999, the Government intends to set up a special Task Force, drawn from all the bodies which currently set standards for the advice sector. The role of the Task Force will be to develop core quality criteria. These will form the basis of a common accreditation scheme, or 'kitemark', on which all potential funders will be able to rely. This will benefit funders, by reducing the work needed to develop and monitor quality criteria of their own; and it will benefit providers, who will no longer have to waste resources complying with the separate quality requirements imposed by different funders. The Task Force will report by the end of 1999. |
| 2.17 | After that, the LSC will take on responsibility for maintaining and developing the new quality system; and integrating it with the Legal Aid Board's existing franchising scheme (see paragraph 3.21). Providers will have to obtain the kitemark as a condition of obtaining a contract with the LSC; other funders will be able to impose the same requirement. The LSC will be able to authorise other bodies, for example funders or umbrella organisations like the National Association of Citizens Advice Bureaux, to issue the kitemark. |
| 2.18 | Today, information technology (IT) and the Internet are becoming increasingly important ways of distributing information. The Government therefore intends to develop a Community Legal Service website. We set out our ideas in a recent Consultation Paper5. Over the next few years, many more people will be able to gain access to the Internet, including through their own television sets at home. Our IT for All project will ensure that every public library is on-line by 2002. Technical improvements will make the Internet much easier, quicker, and less daunting to use. Our aim is that, when that time comes, there will be a user-friendly website, providing a wide range of information and advice about the law, the legal system, legal services, and how to deal with different types of legal problem. This will make help more accessible for everyone, but especially people living in remote locations, or confined to home by disability. |
| | Advisers who are not qualified lawyers |
| 2.19 | Most of the people who work in the advice sector are not qualified solicitors or barristers. The Government believes that the existence of alternative types of provider is generally in the public interest. Indeed, the enthusiasm and innovatory approach of the voluntary sector, and other non-lawyer providers, are essential ingredients of the Community Legal Service; and may be a catalyst for changes in the way that more traditional legal services are delivered. But we are concerned to ensure that consumers receive a high quality service from all providers of legal services, and are protected from the unscrupulous and incompetent. The development of kitemarking, as part of the Community Legal Service (paragraphs 2.16-17), will offer assurance to the public that particular providers work to a high standard. |
| 2.20 | However, the Government does not rule out direct regulation, where that would be in the public interest. As promised in our Manifesto, we intend to control unscrupulous immigration advisers by regulating the activities of people who provide advice about immigration and asylum issues. This is part of our wider package of reforms in this area6, and will form part of an Immigration and Asylum Bill in the current Session of Parliament. |
| | SPECIALIST HELP FROM LAWYERS |
| 2.21 | Only qualified lawyers are allowed to offer certain types of legal service to the public. This is so that, in complex and difficult legal matters which may require litigation, and perhaps a trial, consumers are protected from incompetent and unscrupulous providers who do not have the necessary qualifications and expertise, and who are not subject to professional ethics and discipline. The Government is committed to safeguarding a strong and independent legal profession. Lawyers should not fear to defend unpopular causes or people, or act against popular and powerful ones. That is why it is the professional bodies themselves, the Bar Council and the Law Society, which regulate barristers and solicitors respectively. They are responsible for ensuring that lawyers are properly trained, have appropriate rules of conduct, and have procedures in place to deal with complaints made against them by their clients. |
| 2.22 | But the independence of the legal profession is not a justification for immunity from public scrutiny, or for preserving outmoded structures or practices. The Government also has a role: to act for the public interest in setting the framework within which a self-regulating legal profession can provide affordable, high quality and independent services to the public. Our particular objectives are to:
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| | Lawyers' monopolies |
| 2.23 | At present, only solicitors in private practice are allowed to conduct litigation on behalf of members of the public (this means they can issue legal proceedings, and do any other work necessary to take a case forward, other than appearing in court). Until recently, only barristers in private practice were allowed to appear as advocates in the higher courts (the Crown Court, High Court, Court of Appeal and House of Lords). Since 1993, the Law Society has been able to grant these 'rights of audience' to solicitors in private practice, who meet the training requirements approved for this purpose. However, since then, only about 600 solicitors have actually qualified as higher court advocates. Since April 1998, the Institute of Legal Executives has been able to grant limited rights of audience in the lower courts to its Fellows. |
| 2.24 | These changes were made possible by the Courts and Legal Services Act 1990. That Act established a system for authorising professional bodies to grant rights of audience, and rights to conduct litigation, to their members. The Lord Chancellor and four senior judges (the Lord Chief Justice, Master of the Rolls, President of the Family Division and Vice-Chancellor) must all agree, before a new body can be authorised; or an existing authorised body can change any of its rules about the conduct of these rights. Before reaching a decision, the Lord Chancellor must first obtain advice from his Advisory Committee on Legal Education and Conduct (ACLEC), a quango created by the 1990 Act. |
| 2.25 | The objective of these reforms was to encourage new and better ways of providing legal services, and a wider choice of people providing them. But the system has proved cumbersome, complex and slow. It has given ample opportunity to those who want to frustrate change. For example, it was not until 1997 that employed solicitors gained any new rights of audience, and these were extremely limited. |
| 2.26 | In June 1998, the Government published proposals for a more effective system7. We intend to sweep away the unjustified restrictive practice that prevents most qualified lawyers from appearing before the higher courts; and establish an efficient and streamlined procedure for promoting and regulating the future development of lawyers' services in England and Wales. As a result:
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| 2.27 | In future, all barristers and solicitors will, in principle, be qualified to appear in any court. Full rights of audience will extend to Crown Prosecutors as well as other employed lawyers. The Bar Council and the Law Society will still be able to set additional training requirements, which must be met before a lawyer can exercise these full rights of audience in practice. Once lawyers have met the training requirements which apply to them, they will be able to exercise their rights of audience even if they change from one branch of the legal profession to another (for example from barrister to solicitor), or if they leave private practice and become employed lawyers. |
| 2.28 | We will also authorise the Bar Council and the Institute of Legal Executives to grant rights to conduct litigation to their members. It will then be for these bodies to propose amendments to their rules, to set any training requirements and govern the exercise of these rights. |
| 2.29 | We will introduce a simpler procedure for approving changes to professional rules which affect rights of audience or rights to conduct litigation; and for considering applications from new bodies which wish to be authorised to grant these rights. As now, it will be for the professional body itself to propose rule changes, or to apply for authorisation. But the Lord Chancellor will decide whether to approve proposed rule changes; and whether to seek Parliamentary approval for the authorisation of a new body. |
| 2.30 | The Lord Chancellor will not take these decisions without advice.
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| 2.31 | Finally, the Government intends to ensure that professional bodies cannot frustrate the objectives of these changes: by failing to propose the rule changes and training requirements needed to give practical effect to wider rights of audience, and rights to conduct litigation; or by proposing unnecessarily tough rules and requirements, designed to preserve existing restrictive practices by the back door. To prevent this, and equally to prevent unduly lax rules from operating, the Lord Chancellor will be able, in exceptional circumstances, to examine existing rules and training requirements about rights of audience and rights to conduct litigation. If they are not in the public interest, he will be able to strike them down and replace them with different rules and requirements. Before using this power, the Lord Chancellor will have to consult the four senior judges, and seek Parliamentary approval. |
| | Standards of service |
| 2.32 | The Government intends to maintain and improve lawyers' standards of service in three ways, by:
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| 2.33 | Effective education and training is essential to the success of the proposals for modernisation set out in this White Paper; to the smooth operation of the courts; and to consumers of legal services generally. This education and training is provided by a variety of bodies outside government, and it is not part of Government's role to prescribe the detail of the education and training which they make available. But the Government retains an active interest in this field. So we intend to strengthen our links with providers of legal education and training, in order to assist them by providing a forum where common problems can be considered. The Legal Services Consultative Panel will play an important part in this process, and will have the duty of helping to maintain and develop standards in the education and training of those offering legal services. The Lord Chancellor will be obliged to consider any recommendations it makes. In addition, we will help providers by informing them of our policies and discussing any training needs which may flow from these. In this way, we will be able to continue the useful role previously played by ACLEC. We are consulting widely on the extent and nature of the new arrangements. |
| | How lawyers are paid |
| 2.34 | A person should not have to be very rich, or poor enough to qualify for legal aid, to be able to pursue a strong and worthwhile case. But unless the case is also a simple one, it will be necessary to pay for one or more lawyers. Many people with good cases are put off because they cannot afford lawyers' fees. Others are put off simply by fear of a very large bill, because they are not sure how the fees will mount up over time. The Government intends to make legal bills more affordable and predictable, by:
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| Insurance |
| 2.35 | Insurance cover against the cost of becoming involved in a future legal action is one way in which people can solve the problem of unaffordable and uncertain lawyers' bills. Policies attached to other insurance polices have been available for over 20 years. The premiums, often between £4 and £20, are so small that most people do not realise they have cover in the event that they need to go to law. Some 17 million people are already covered by one of these policies. The Government will be discussing with the insurance industry how more people could be encouraged to take out legal expenses insurance. |
| | Controlling lawyers' fees in litigation |
| 2.36 | In the past, lawyers would simply present a bill at the end of a case, often having given little or no indication of how much it would be. This practice is no longer acceptable in a modern society. Like most other services these days, legal bills should be based on a firm estimate. Professional rules now require solicitors to give an estimate of the cost at the start of a case, and tell the client when this changes. In practice, however, these estimates often prove inaccurate and are frequently changed. As a result, litigants still do not know, with reasonable certainty, how much they may have to pay in the end. |
| 2.37 | The position is complicated by the fact that, in this country, the losing party in a civil case generally has to pay the winning party's reasonable costs. If the parties cannot agree on a figure, the court decides what is fair. But the system for regulating costs between the parties has a major influence on the fees that lawyers charge their own clients. First, it acts as a benchmark for the level of fees that lawyers charge, and so reduces competition between them. Secondly, because it relies on assessing a bill after the event, it makes it harder for lawyers to replace their traditional charging methods with firm prices or estimates set at the start. |
| 2.38 | In future, the Government expects to see lawyers give clear and firm estimates of the likely cost of cases, so clients can make informed decisions about whether to proceed. The circumstances in which an estimate might have to be changed, and how any change would be calculated, should also be explained clearly at the outset. We recognise, however, that this can be difficult at present, because the way litigation is conducted leaves too much that the solicitor cannot control or predict. This will change when we implement the reforms described in Chapter 4. From April 1999, the great majority of civil cases, other than small claims, will be run under a new 'fast track' procedure (see paragraph 4.3). As a result, procedures will become more certain; and case management by the court will prevent either party from running up costs for tactical reasons. With these changes, and given modern management techniques and the imagination to abandon outdated ways of thinking, we see no reason why, in time, solicitors should not be able to offer a fixed price, or at least give a firm estimate of the cost, in almost every case. |
| 2.39 | The Government recognises, however, that this objective will not be reached overnight. In June 1998, we published a Consultation Paper8, and the results of research9, about setting scales to fix the costs recoverable between the parties in fast track cases. The research and the responses to consultation showed the need to develop a new approach in careful stages. One problem is the lack of reliable information about how costs are incurred now. Another is that, if a fixed scale does not enable efficient lawyers to make a reasonable profit, given the work they have to do under the new procedure, they will simply charge their own clients an additional fee. This shows the need to tackle both the costs that can be recovered between the parties to litigation, and the costs that lawyers can charge their own clients, at the same time. |
| 2.40 | As a first step, the Government has decided to set a sliding scale of fixed costs to cover the cost of advocacy at a trial in the fast track, up to a maximum figure of £750. This will be introduced in April 1999 at the same time as the fast track itself. Later this year, we will consult about further possible controls, which we would seek to implement at the same time. We propose to require solicitors to:
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| 2.41 | For the longer term, the Government will consider how the costs for the preparatory stages of fast track cases can be fixed at a reasonable level, proportionate to the issues at stake, from an earlier stage. We will work closely with the legal profession, and consumer and other interest groups, to identify the best ways of controlling costs in different types of case. |
| | Conditional fees |
| 2.42 | The last Government introduced conditional fees for certain types of civil case, most importantly personal injury cases. Under a conditional fee agreement, the lawyer agrees not to charge a fee if the case is lost, in return for a higher fee than normal if it is won. The client or the lawyer can take out insurance to cover the risk of losing and having to pay the other side's costs. In a successful case, the other party will usually be ordered to pay most of the lawyer's normal fee. The client currently has to find the additional 'success fee' out of whatever damages he or she has won. The success fee cannot be more than 100% of the normal fee; and most solicitors have agreed not to take more than 25% of the damages recovered in a personal injury case. |
| 2.43 | Where they are allowed, conditional fees have already greatly extended access to justice. With conditional fees, people can take good cases, in the certain knowledge that will not be left out of pocket if they lose (except by the amount of any insurance premium). In July 1998, following consultation10, the Government extended the benefits of conditional fees to all types of civil case, except family proceedings. This was a far as we could go under the present law. In future, we intend to allow conditional fees in some types of family case as well. Conditional fees are not appropriate in cases about the care of children or domestic violence. On the other hand, they offer a potentially attractive option in cases about the division of matrimonial property. We see no reason to prevent people from choosing to fund those cases by a conditional fee, rather than having to pay their lawyer win or lose. |
| 2.44 | We also intend to widen the scope of conditional fees in another very important way. In practice, at the moment, only people who expect to win money from their case can benefit from conditional fees. This is the only way that most people can afford to pay the success fee. But it means that a successful litigant will not receive all the money which he or she has been awarded. The Government believes that this is wrong. So, in future, we intend to make it possible for the winning party to recover the success fee, and any insurance premium, from the losing party - the person or organisation that has committed the legal wrong. This will make conditional fees more attractive and fairer, and allow defendants and claimants whose case is not about money to use them. This will be a further radical expansion of access to justice. |
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